What is the difference between criminal and evidence law?
Criminal law tells us what we need to prove.
Evidence law tells us how to go about proving it.
What is the starting point of evidence law?
Evidence must be relevant to be admissible in court.
Once this has been established, the principle of free proof says that any relevant evidence is admissible, if not subject to one of the many exclusionary rules.
What are some justification for having exclusionary rules?
That the excluded evidence is
(a) not the best evidence available;
(b) unreliable;
(c) misleading;
(d) that it would be against public policy to admit it; or
(e) that it is unnecessary.
What is the standard of proof?
The basic is that the prosecution bears the burden of proof to prove guilt beyond reasonable doubt.
Where the accused bears a persuasive burden in criminal proceedings, the appropriate standard is the balance of probabilities
What is reasonable doubt?
A v HM Advocate (2003): a doubt “that would cause a juror to hesitate or pause before taking an important decision in the conduct of his own affairs”.
Who must prove defences?
Used to think the accused had to prove ‘special defences’ (like self-defence).
However, Lambie v HM Advocate (1973) confirmed this is untrue. The accused must give advance notice of intention to raise a special defence and must prove an evidential burden, but provided he has met this, it is for the prosecution to disprove the defence beyond a reasonable doubt.
What about corroborated evidence?
Corroboration requires evidence from at least two independent sources to prove the essential facts of a crime, namely that the crime was committed and that the accused committed it.
What are the types of evidence?
- Oral evidence: what a witness says in court
- Real evidence: a physical item lodged as a “production” in court (normally required for a witness to speak to)
- Documentary evidence: a document lodged as a “production” (also normally needs a witness to speak to)
What are the key evidential concepts?
- burden and standard of proof
- sufficiency
- relevancy
- admissibility
- weight
- corroboration
What is required for corroborative evidence?
At least two pieces of evidence are required from multiple independent sources that coincide in order to prove a material fact.
